Hammond, W.&E.C. Elec. St. Ry. Co. v. Blockie
| Decision Date | 19 November 1907 |
| Docket Number | No. 5,929.,5,929. |
| Citation | 40 Ind.App. 497,82 N.E. 541 |
| Court | Indiana Appellate Court |
| Parties | HAMMOND, W. & E. C. ELECTRIC ST. RY. CO. v. BLOCKIE. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; H. B. Tuthill, Judge.
Action by Alice Isabell Marie Blockie, a minor, by her next friend, against the Hammond, Whiting & East Chicago Electric Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Crumpacker & Moran, for appellant. W. J. McAleer and N. L. Agnew, for appellee.
This is an action brought by appellee, by her next friend, against appellant for injuries sustained by being struck and run over by a work train operated by appellant. Upon issue joined trial was had by jury, which returned a general verdict in favor of appellee and answers to 72 interrogatories. Appellant moved for a judgment on the answers to interrogatories, which was overruled. The action of the court in overruling this motion is the only error assigned.
Counsel for appellant insist that their motionshould be sustained for the reasons, first, that the answers to interrogatories showed that appellant was not guilty of any negligence that caused appellee's injury; second, that the complaint proceeds upon the theory that appellee was incapable of appreciating danger, and that the answers to the interrogatories show that she was capable of exercising some degree of care for her own safety, and that she failed to exercise any. The averments of the complaint bearing upon the question of negligence are, in effect, that appellant ran a heavily loaded work train at a reckless and careless rate of speed, 10 miles per hour, over a street crossing at a time when there was another car going in an opposite direction, standing on said crossing to receive and unload passengers, without sounding its gong or giving any signal of its approach at a time when appellant's servants knew of appellee's presence at said place; that appellant was negligent in using a train, the motor car of which was in front, and which motor car had no fender in front to prevent persons from being thrown underneath; that, by reason of the absence of such fender, appellee was, when struck by the car, thrown underneath said car and between the wheels thereof, and was thereby crushed and maimed. The averments of the complaint on the question of the capacity of said appellee are as follows: “That on said date the said plaintiff, Alice Isabell Marie Blockie, was a child five years of age, too young to be capable of appreciating danger or to have proper caution and discretion, active, bright, and intelligent, and had always been and was perfectly healthy.” The answers of the jury to interrogatories on the question of negligence show the following facts: “That there was no fender on the front of defendant's motor car that struck appellee; that the presence of such fender would have prevented the injury by picking her up and throwing her to one side of the track; that the gong was sounded by the motor car as it approached the crossing; that, while the gong was sounded on such approach, yet under the circumstances the sounding of the gong could not prevent the injury; that an ordinarily prudent person would have expected a child so young as to be unable to appreciate danger to be upon the street at the time and place where appellee was injured; that a reasonably prudent person in the position of appellant's motorman on the motor car would have reasonably expected appellee to have run or gone from her position east of the north-bound passenger car around the hind end thereof to the place where she was injured; that the motor car was running at the rate of 10 miles an hour; that it ran 30 feet after it came in contact with appellee before it stopped; that said car could not be stopped in a shorter distance under all the circumstances; that the work car was running at an unusual rate of speed under the circumstances when it struck appellee; that the motorman on the work car did not do all that a reasonably prudent person would have done under like circumstances to have prevented the injury by running too fast at the crossing, by omitting to slow up his train at the crossing, and failing to exercise the necessary vigilance and care for the safety of people coming from the east side of the north-bound car; that reasonable foresight on the part of the defendant and of a reasonably prudent man as a motorman would have prevented the accident; that appellant's motorman first saw appellee as she crossed the track in front of his car going towards the east track; that said motorman saw the appellee in time to have stopped his car before the appellee came in contact...
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